1
Fair Work Act 2009
s.604 - Appeal of decisions
Ranjan Mohapatra
v
Acciona Energy Australia Global Pty Ltd T/A Acciona Energy
(C2016/2509)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON MELBOURNE, 1 APRIL 2016
Appeal against decision [2015] FWC 5976 of Commissioner Roe at Melbourne on 2
September 2015 in matter number U2015/1137 – Extension of time to lodge an appeal –
Permission to appeal – Whether grounds of appeal attract the public interest – Whether
arguable case of appealable error – Fair Work Act 2009 – ss.394, 400 and 604.
Introduction
[1] This decision concerns an application for extension of time to appeal and permission
to appeal against a decision of Commissioner Roe published on 2 September 2015.1 The
decision of the Commissioner concerned an application for unfair dismissal remedy made by
Dr Ranjan Mohapatra under s.394 of the Fair Work Act 2009 (the Act) in relation to the
termination of his employment by Acciona Energy Australia Global Pty Ltd T/A Acciona
Energy (Acciona) on 27 February 2015.
[2] In his decision, the Commissioner found that Dr Mohapatra had not been unfairly
dismissed.
[3] On 21 December 2015, Dr Mohapatra wrote to the President expressing concerns
about Commissioner Roe’s decision. The President’s Associate responded acknowledging
the correspondence and that she would draw it to the President’s attention. Dr Mohapatra
requested an update on 30 December, after which the President’s Associate advised the
correspondence was still with the President and drew Dr Mohapatra’s attention to the appeal
process, as well as indicating what may need to be done in the event an appeal was instituted
out of time. Dr Mohapatra’s application to appeal was lodged in the Fair Work Commission
on 25 January 2016.
[4] Even at the time that Dr Mohapatra first made contact with the President about his
concerns, the matter was beyond the 21 day time limit provided for in the Fair Work
Commission Rules 2013 for the commencement of an appeal. By the time the application for
appeal was lodged, it was 124 days out of time.
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DECISION
E AUSTRALIA FairWork Commission
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[5] By way of background, and relevant to the matters now under appeal, the
Commissioner found:
Dr Mohapatra was fairly dismissed, for serious misconduct;
The misconduct related to his misuse of a company sponsored credit card, issued for
the purposes of business approved travel, the use of which is subject to an Acciona
policy;
The allegations of misuse were recorded in the Commissioner’s decision in the
following way:
“[10] Mr Mohapatra purchased the following items using his company credit
card and in the Concur system claimed reimbursement for these items as meals
consumed while travelling: a blender, an Australia Day t-shirt, 2 Australia Day
boxer shorts, a pair of gym shoes, a pair of gym shorts, a 3 meter extension
lead, a backpack, a duffle bag, 2 bathmats, a cooler bag, an Australia Day
singlet, vitamins, a heater and 14 massages. Most of the items were purchased
on 13, 14 and 15 January 2015. The massages were purchased between July
and November 2014, the mens fitness items were purchased on 21 November
2014, the vitamins were purchased on 13 August 2014 and the heater was
purchased on 16 July 2014.
[11] Mr Mohapatra also purchased and claimed $51.36 of food items for dinner
on 15 January 2015 when the purchases were made at 8.36pm after his return
from Canberra. The flight arrived at 6.20pm on that day and the policy
provides that the meal can only be claimed if the travel concludes after
7.30pm”2;
The Commissioner was not satisfied that most of the expenses claimed were
legitimate business expenses claimable under Acciona’s policy3 and found that Dr
Mohapatra had “consciously and deliberately made claims for the disputed items and
he described their expense type as Breakfast, Lunch or Dinner knowing that none of
the items, except for the 15 January dinner after return from Canberra, were in fact
breakfast, lunch or dinner”4; and
He also made findings of credit adverse to Dr Mohapatra, including rejecting a claim
that the fact he spoke English as a second language might result in a lack of
understanding of Acciona’s policies; that there were cultural differences that might
be relevant to the case; that he may have been insufficiently trained in the online
system used to make expense claims; that making separate transactions at the same
cashier within the same minute might be an endeavour to comply with the policy
rather than to mask behaviour; or that folding receipts under a credit card chit when
submitting a claim was anything other than an endeavour to avoid scrutiny.5
[6] The Commissioner also took into account, for the purposes of Dr Mohapatra’s
credibility, evidence obtained by Acciona after termination of employment relating to
insurance claims made by Dr Mohapatra for damage to luggage in 4 separate international
trips, personally related, in the 12 months from February 2014. The Commissioner found that
the chances of damage to luggage “on every trip and in some cases more than one bag on a
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trip in one year is infinitesimally low”. The Commissioner connected that reasoning with his
rejection of Dr Mohapatra’s claim he had bags, a blender and kettle damaged in a trip
undertaken to Canberra for business purposes in January 2015.6
[7] At the hearing of the appeal matter on 15 March 2016, Dr J. Walsh of counsel
appeared on behalf of Dr Mohapatra and Mr N. Ruskin appeared on behalf of Acciona.
Grounds for Extension of Time and of Appeal
[8] The grounds advanced in relation to an extension of time for the making of the appeal
include that Dr Mohapatra was overseas at the time the decision was made, and that he did not
return to Australia until 21 November 2015 and that he sought legal advice in December
2015. Dr Mohapatra also advances that he had been diagnosed with depression and anxiety,
and that his depression continues. He also records that he was told on 31 December 2015 by
the President’s Associate that he “could seek an extension for appeal” and that following the
public holidays and weekends around that time, it took some time for him to process all the
information due to the state of his mental condition. He sought further legal advice in January
2016.
[9] In the hearing of the appeal, Dr Walsh advanced, seemingly both in connection with
the question of an extension of time for the making of an appeal as well as whether
permission to appeal should be granted:
that Dr Mohapatra had been at a significant disadvantage in the hearing at first
instance because his legal representation had ceased only a few days before the
hearing, yet the respondent was permitted legal representation;
that the incidents that led to Dr Mohapatra’s dismissal should have led to him being
pulled up earlier, with him being warned instead of dismissed; and
that his command of English is limited; that he came over badly in the hearing, with
the Commissioner placing too much weight on credit; and that immediately after the
decision he left the country.
[10] The grounds of appeal advanced are set out in 22 paragraphs in the Notice of Appeal,
which may be summarised into the following 5 grounds
1. an apprehension that the Commissioner “had made his mind up from the outset”;
2. a failure to provide any or sufficient reasons for the Commissioner’s decision to
allow legal representation by the respondent and to conduct the matter by way of
a hearing instead of a conference;
3. a failure to test the procedural fairness of Dr Mohapatra’s dismissal or not to take
into account key defences put forward by Dr Mohapatra;
4. disadvantage suffered by Dr Mohapatra from procedural decisions made by the
Commissioner in the course of the hearing, said to result in unfairness to him;
and
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5. certain findings made by the Commissioner were not open to him on the
evidence.
[11] Dr Mohapatra submits that it is in the public interest to both extend the time for the
making of an appeal, as well as to grant permission to appeal, because of the numerous
significant errors of fact made in the original decision.
Extension of time
[12] Rule 56 of the Fair Work Commission Rules 2013 deals with appeals and the time
period for instituting appeals. The rule provides that an appeal must be instituted within 21
days after the date of the decision appealed against. The appeal was instituted some four
months out of time. Rule 56(2)(c) confers a discretion on the Commission to extend the time
within which the appeal is to be lodged. The principles for the exercise of this discretion were
summarised by the Full Bench in Jobs Australia v Eland:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the
time for bringing an appeal and it should only be extended where there are good
reasons for doing so. The authorities indicate that the following matters are relevant to
the exercise of the Tribunal’s discretion under Rule 56(2)(c):
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
any prejudice to the respondent if time were extended.”7
Permission to Appeal
[13] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.
604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which
provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA considers that it is in the public
interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.”
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[14] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent
one’8. The Commission must not grant permission to appeal unless it considers that it is ‘in
the public interest to do so’.
[15] The test for determining the public interest has been described as follows:9
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.”
[16] It is also important to note that the decision under appeal is of a discretionary nature.
Usually such a decision can only be successfully challenged on appeal if it is shown that the
discretion was not exercised correctly.10 It is not open to an appeal bench to substitute its
view on the matters that fell for determination before the Commissioner in the absence of
error of an appealable nature in the decision at first instance. As the High Court said in House
v The King:11
“The manner in which an appeal against an exercise of discretion should be
determined is governed by established principles. It is not enough that the judges
composing the appellate court consider that, if they had been in the position of the
primary judge, they would have taken a different course. It must appear that some
error has been made in exercising the discretion. If the judge acts upon a wrong
principle, if he allows extraneous or irrelevant matters to guide or affect him, if he
mistakes the facts, if he does not take into account some material consideration, then
his determination should be reviewed and the appellate court may exercise its own
discretion in substitution for his if it has the materials for doing so. It may not appear
how the primary judge has reached the result embodied in his order, but, if upon the
facts it is unreasonable or plainly unjust, the appellate court may infer that in some
way there has been a failure properly to exercise the discretion which the law reposes
in the court of first instance. In such a case, although the nature of the error may not be
discoverable, the exercise of the discretion is reviewed on the ground that a substantial
wrong has in fact occurred.”
[17] Consideration was also given in Gregory v Qantas Airways Ltd to the proper
assessment of “the public interest” in unfair dismissal appeals. After endorsing the passage
referred to above in GlaxoSmithKline Australia Pty Ltd v Makin,12 and noting that its
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formulation of the public interest had repeatedly been affirmed by the High Court, the Full
Federal Court expressed the following:
“55. In other words, assessment of what is in the public interest, so far as it concerns
matters coming before the FWC, and the assessment of when the public interest
requires a grant of permission to appeal in an unfair dismissal case, is primarily a
matter for the Full Bench, unless it pays regard to some matter extraneous to its task or
to that evaluation, or fails to pay attention to relevant matters or misunderstands the
nature of the examination required.”13
Conclusion
[18] Dr Mohapatra advances no cogent or persuasive reason for the delay in making his
application for appeal. The reasons he advances include that he was out of Australia; that he
was ill; and that he sought legal advice.
[19] Dr Mohapatra’s illness is stated as anxiety and depression, and no medical evidence
has been provided of the extent of those illnesses. Whilst he may have been out of Australia,
it has not been explained by him why that absence might be a reason either for lack of
knowledge about the Commissioner’s decision, or the delay in attending to an appeal. We
note that the Commissioner found Dr Mohapatra holds an MBA and PhD from an Australian
university, with him having been a resident of Australia for the past 20 years. He was
employed by Acciona as an engineer. He is plainly not an uneducated person and his job at
Acciona required the use of technology. Nothing within the matter would indicate Dr
Mohapatra was, when he was outside of Australia, unable to pursue his rights for reason of
education or inability to use communications technology.
[20] The Notice of Appeal records that at the earliest, Dr Mohapatra endeavoured to access
legal advice in December 2015. Even at that point, an appeal would have been out of time.
[21] The foregoing relates to the question of whether there is an acceptable reason for the
delay in Dr Mohapatra making an application for appeal. We find there is not. We also take
account of the other principles set out in Jobs Australia v Eland,14 and find the length of the
delay in commencing an appeal is a factor that works against granting an extension; that for
the reasons set out below, the prospects of Dr Mohapatra’s appeal are not high; and that the
prejudice to Acciona in being put to the task of defending a full appeal would be substantial
when they otherwise regarded the matter as settled with publication of the Commissioner’s
decision.
[22] The claimed public interest in a grant of permission to appeal includes that Dr
Mohapatra was seriously disadvantaged in the hearing of the original matter because he
ceased to be legally represented on 17 August 2015, the day before the hearing,15 whereas
Acciona continued to be legally represented. It is argued that the disadvantage manifested
itself firstly with procedural decisions being made by the Commissioner adverse to Dr
Mohapatra, and secondly with adverse findings of fact being made.
[23] The first argument, associated with a related claim that Dr Mohapatra should have
been afforded a determination of his application by way of a conference instead of a
hearing,16 is made problematic for Dr Mohapatra, since he did not seek, at the start of the
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hearing, an adjournment so he could seek further legal representation, and neither opposed
legal representation of Acciona or the conduct of the matter by way of hearing.
[24] There is no right as such to legal representation in proceedings before the
Commission, with s.596 of the Act requiring that a person may be represented in a matter
before the Commission by a lawyer or paid agent only with the permission of the presiding
member after taking into account the matters set out with in the section. The consideration in
s.596 is not to there being an entitlement, but rather whether it should be permitted. In an
environment in which the Federal Court has held that the normal position is for parties to
appear on their own behalf, and that such “normal position may only be departed from where
an application for permission has been made and resolved in accordance with law”17, the
proposition that the Commission should automatically adjourn a matter because a person is
not legally represented, or has had their legal representation end, simply does not arise.
[25] Had the Commissioner been asked for an adjournment in order to seek legal
representation, or had the Commissioner himself discerned that Dr Mohapatra was unable to
proceed, for whatever reason, he may have needed to consider whether an adjournment was,
in all the circumstances, desirable. However, those possibilities did not arise, and the
Commissioner was entitled to proceed. Nothing has been raised with the Full Bench that
would enable a finding by us that Dr Mohapatra’s arguments in relation to the question of
representation or that the matter was conducted by way of hearing would likely succeed if
permission given to appeal.
[26] The procedural decisions made by the Commissioner adverse to Dr Mohapatra include
his decisions to admit post-termination evidence in relation to travel insurance claims for
luggage, the refusal to admit evidence in relation to claims by Dr Mohapatra that bullying
may have been a reason for dismissal, and a refusal to require the production of Dr
Mohapatra’s personnel file. There appears no question of the public interest in relation to an
appeal over such matters. Within those matters, there is no question of the application of
general principle, or interpretation of the Act. These are complaints confined to Dr
Mohapatra’s own interests. It is unlikely, on the basis either of the matters requiring
determination by the Commissioner, or the matters argued in the hearing before the Full
Bench, that a finding would be made upon a full hearing of the appeal that there had been a
manifest injustice to Dr Mohapatra as a result of the Commissioner’s procedural decisions.
[27] The second argument, of adverse findings of fact against Dr Mohapatra is similarly
problematic for him, having regard to the matters the Commissioner was required to
determine and the findings he made. We have not been provided with argument about errors
that may have been made by the Commissioner at first instance in his evaluation of the
matters in contest or his determination of the credibility of the witnesses he heard and
observed. Nor has there been an endeavour to connect any adverse findings of fact made by
the Commissioner with the disadvantage Dr Mohapatra may have suffered from the cessation
of his legal representation.
[28] The findings the Commissioner made about the luggage claims made by Dr Mohapatra
for personal trips, apparently learned of by Acciona after employment had ended, were likely
capable of inclusion by the Commissioner in the factors he used to weigh the core evidence
about whether or not Acciona held a valid reason for Dr Mohapatra’s dismissal. The
Commission has previously held that while similar fact evidence is not admissible as a
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general rule, it may be admitted where the evidence is sufficiently highly probative of a fact in
issue to outweigh the prejudice it may cause.18
[29] The Commissioner’s acceptance of the evidence about the personal luggage claims
appears to have been open to him. He appears to have seen the claims as having connection
to the reimbursement claims made by Dr Mohapatra during employment and which were the
reason for his dismissal.
[30] It would be unlikely, on a full hearing of the appeal, dealing with matters of
misconduct in the form of falsified travel claims, that the Full Bench would find either that
admission of the similar fact evidence amounted to a manifest injustice to him or that it
should not be accorded a weight at the level the Commissioner attributed in his decision. In
his decision the Commissioner found, firstly that the personal travel luggage claims raised
significant questions about Dr Mohapatra’s credibility as a witness, and secondly that such
credibility led him to find that Dr Mohapatra did not have, as he claimed, his bags, blender
and kettle damaged in transit to Canberra in January 2015. We note also that questions of
weight are not normally relevant to appeals against discretionary decisions.
[31] We consider, overall, in relation to the second question of whether adverse findings of
fact against Dr Mohapatra indicate a manifest injustice toward him, that such is unlikely.
Such errors of fact that might be demonstrated by Dr Mohapatra upon a full hearing of the
appeal are likely to not be significant errors of fact
[32] Finally, we refer to the first of the grounds of appeal disclosed in Dr Mohapatra’s
Notice of Appeal, that “it does appear Commissioner Roe had made up his mind from the
outset”. This ground was not developed before us and counsel for Dr Mohapatra did not refer
to there being any apprehended or actual bias on the part of the Commissioner. As a result,
we find that no arguable case has been made to us on this ground.
[33] Accordingly, the Full Bench does not consider Dr Mohapatra has enlivened the public
interest sufficiently for permission to appeal to be granted.
[34] Having considered both the question of whether an extension of time should be
granted to Dr Mohapatra and whether he has satisfied the requirements for permission to
appeal to be granted, we resolve both questions in the negative.
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[35] Accordingly, having decided that we are not satisfied that an extension of time should
be granted to Dr Mohapatra for the making of his application to appeal:
we find that the application to appeal is out of time and is therefore not competent;
and
for that reason, we dismiss the application for permission to appeal.
VICE PRESIDENT
Appearances:
Dr J. Walsh, of counsel, on behalf of Dr Mohapatra.
Mr N. Ruskin, of counsel, on behalf of Acciona.
Hearing details:
2016.
Melbourne.
15 March.
Final written submissions:
Dr Mohapatra on 9 March 2016.
Printed by authority of the Commonwealth Government Printer
Price code C, PR578609
1 [2015] FWC 5976.
2 Ibid, at [10] – [11].
3 Ibid, at [27].
4 Ibid, at [18].
5 Ibid, at [15] – [19] and [25].
6 Ibid, at [31] – [32].
7 [2014] FWCFB 4822.
THE OF THE FAIR WORK C. SEN THE NOISS
[2016] FWCFB 2059
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8 (2011) 192 FCR 78 at paragraph 43.
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
10 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
11 Ibid.
12 [2010] FWAFB 5343.
13 [2016] FCAFC 7, at [55].
14 [2014] FWCFB 4822.
15 Applicant’s appeal outline of submissions, at paragraph 2.
16 See ss. 398 – 399.
17 Warrell v Walton [2013] FCA 291, at [24].
18 Bruce Hill v Minister for Local Government, Territories and Roads (2004) unreported, Print PR946017, at [82], per Lacy
SDP; see also Cross on Evidence, paragraph 21010.
